Tribal Land and Ownership Statuses: Overview and Selected Issues for Congress

Tribal Land and Ownership Statuses: Overview and Selected Issues for Congress

Tribal Land and Ownership Statuses: Overview July 21, 2021
and Selected Issues for Congress
Tana Fitzpatrick
Tribal lands can have a complicated and intermingled mix of land ownership statuses.
Specialist in Natural
The history between federal y recognized Indian tribes (hereinafter, Indian tribes or
Resources Policy
tribes) and the United States—dating back centuries—continues to affect current land

issues for tribes. Three early 19th century Supreme Court cases, known as the Marshall

Trilogy, established a basic framework for federal Indian law and the roots of the
federal-tribal trust relationship. These cases determined that tribes have the right to reside on lands reserved for
them, but the United States has ultimate title; tribes are “domestic dependent nations”; and states cannot impose
their policies within Indian territories.
Centuries of shifting federal policymaking also profoundly affected the treatment of tribal lands. In the 1800s,
policymaking focused on renegotiating treaties with tribes, leading to the formation of reservations and often
resulting in tribes ceding to the United States larger tracts of land for smal er parcels. In the late 1800s and early
1900s, in an effort to assimilate tribes and their members into mainstream American culture, Congress authorized
lands communal y held by tribes to be allotted to tribal members, leading to mil ions of acres passing out of trust
and into different ownership statuses. In the 1930s and 1940s, Congress ended the al otment policy and granted
more administrative control to tribes with the passage of the Indian Reorganization Act of 1934 (IRA). Among
other actions, the IRA al owed the Secretary of the Interior (Secretary) to bring land into trust on behalf of tribes.
But, in the 1950s and 1960s, Congress again shifted to ending the federal-tribal relationship and terminated the
status of several tribes in an effort to integrate tribes and their members into the general population. Beginning in
the 1970s, policymaking focused on self-determination and self-governance—reestablishing the federal-tribal
trust relationship and increasing tribal decisionmaking.
Today, tribal lands may have different ownership statuses. Common land holdings include trust lands, restricted
fee lands, and fee lands. Trust lands are lands owned by the federal government and held in trust for the benefit of
the tribe communal y or tribal members individual y. Today, lands typical y are brought into trust through the
land-into-trust process, either when Congress directs the Secretary to bring land into trust or when the Secretary
administratively brings land into trust. Restricted fee lands are owned by a tribe or tribal member but are subject
to a restriction against alienation (i.e., sale or transfer) or encumbrance (i.e., lien, leases, etc.) by operation of law.
Fee lands, sometimes referred to as fee simple lands, are lands owned by a person who can freely alienate or
encumber the land without federal approval. The federal government has varying levels of responsibility to tribes
and their members depending on the land holding.
Other types of land designations, while not considered property holdings, can include trust, restricted fee, and fee
lands within their scope. Allotted lands are trust or restricted fee parcels of land held by a tribal member.
Al otments can be highly fractionated, meaning there could be many landowners—at times hundreds—on one
parcel of land, making it difficult to manage or use the land. Federal Indian reservations are areas reserved for a
tribe, or multiple tribes, as permanent homelands through treaties, executive orders, acts of Congress, and
administrative actions. Indian Country is a legal term that, for criminal jurisdictional purposes, general y refers to
al lands within a federal Indian reservation, al dependent Indian communities, and al tribal member al otments.
Congress may consider various issues regarding the land-into-trust process, as wel as requirements for
encumbering trust and restricted fee lands and the fractionation of al otted lands. Policy considerations for
Congress include (1) the Secretary’s authority to process off-reservation land into trust, (2) the Secretary’s
authority to determine whether a tribe qualifies to bring land into trust, (3) the costs and timeliness of bringing
land into trust, (4) when the Secretary’s approval is required to encumber trust or restricted parcels of land, and
(5) options for addressing al otment fractionation.
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Contents
Introduction ................................................................................................................... 1
A Note on Terminology .............................................................................................. 3
The Federal Trust Responsibility and Tribal Lands.......................................................... 3
Historical Framework ...................................................................................................... 4
Marshal Trilogy........................................................................................................ 4
Federal Policymaking Eras with Tribes ......................................................................... 5
Removal and Treaty-Making Era (1830-1887) .......................................................... 5
Allotment Period (1887-1934) ................................................................................ 6
Reorganization Period (1934-1940s) ....................................................................... 7
Termination Era (1950s-1960s)............................................................................... 7
Self-Determination and Self-Governance Era (1970s-Present) ..................................... 8
Overview of Tribal Land and Ownership Statuses ................................................................ 8
Trust Lands ............................................................................................................ 10
Restricted Fee Lands ................................................................................................ 11
Fee Lands............................................................................................................... 12
Allotted Land.......................................................................................................... 13
Federal Indian Reservations ...................................................................................... 17
A Note on Indian Country ......................................................................................... 18
Issues and Options for Congress ...................................................................................... 18
Processing Off-Reservation Land into Trust ................................................................. 18
The Land-into-Trust Process After Carcieri ................................................................. 20
Cost and Timeliness of the Land-into-Trust Process ...................................................... 21
Secretarial Approval to Encumber Trust or Restricted Fee Lands .................................... 21
The Land Buy-Back Program and Reducing Fractionation ............................................. 22

Figures
Figure 1. Selected Lands of the Agua Caliente Band of Cahuilla Indians................................ 15

Tables
Table 1. Types of Tribal Land Holdings and Other Land Designations ..................................... 9

Contacts
Author Information ....................................................................................................... 23

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Introduction
Tribal lands can have a complicated and intermingled mix of land ownership statuses. For
instance, some federal y recognized Indian tribes (hereinafter, Indian tribes or tribes) have
reservations, whereas other tribes do not. Tribes may have land held in trust by the federal
government for their benefit, or tribes may own lands that require the federal government’s
approval to sel or encumber. Stil other tribes may be landless. Tribes and tribal members may
have different rights to manage and develop their lands and resources, even on neighboring
parcels.
This report provides a brief overview of the history between tribes and the United States,
beginning with an overview of three early 19th century Supreme Court decisions known
collectively as the Marshall Trilogy. The Marshal Trilogy established a basic framework for
federal Indian law and the roots of the federal-tribal trust relationship. It also established the
treatment of tribal property and resources. These cases determined that tribes have the right to
reside on lands reserved for them, but the United States has ultimate title; tribes are “domestic
dependent nations”; and states cannot impose their policies within Indian territories.
This report also provides a brief overview of five federal Indian policymaking eras, from the
1800s to present.1 Al of these policymaking eras impacted the status and management of tribal
lands.
 In the “Removal and Treaty-Making Era (1830-1887),” the federal government’s
policy was to renegotiate treaties with tribes in exchange for tribal lands west of
the Mississippi River, which led to tribes ceding to the United States their lands
for smal er tracts and to the formation of the first reservations.
 During the “Al otment Period (1887-1934),” in an effort to promote assimilation
of tribes and tribal members, the federal government divided up tribes’
communal land holdings to individual tribal members in the form of al otments.
This policy led to mil ions of acres passing out of trust. It also led to multiple
owners on—or fractionation of—al otted parcels.
 In the “Reorganization Period (1934-1940s),” federal policy shifted toward
granting more authority and autonomy to tribal governments and ended the
Al otment Period.
 During the “Termination Era (1950s-1960s),” federal policy focused on ending
reservations and dissolving the recognition of tribes having sovereign authority,
again to promote assimilation.

1 T he indicated time frames for the five federal Indian policymaking eras are approximate and may have other names.
T hese time periods are generally agreed upon by scholars, though some may expand the years covered in the “Removal
and T reaty-Making Era,” and others may describe it as separate periods. See, for example, Robert J. Miller, The History
of Federal Indian Policies, March 2010, pp. 10-13, at https://ssrn.com/abstract=1573670; and U.S. Army Corps of
Engineers, “Consulting with T ribal Nation, Guidelines for Effective Collaboration with T ribal Partners,” 2013, p. 4, at
https://www.usace.army.mil/Missions/Civil-Works/T ribal-Nations/tribalcop/. Some may also describe the “ Self-
Determination and Self-Governance Era” as two separate periods. For example, the National Congress of American
Indians (NCAI) suggests that the Nation-to-Nation period is from 2000 to t he present. NCAI, Tribal Nations and the
United States: An Introduction, pp.15, 49, at http://www.ncai.org/about-tribes (hereinafter, NCAI, Tribal Nations). For
more information on federal policymaking eras involving tribes, see Nell Jessup Newton, ed., Cohen’s Handbook of
Federal Indian Law, 2012 Edition, 2017, §§1.01-1.07 (hereinafter, Newton, Cohen’s Handbook).
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 Since the 1970s, federal policy in the “Self-Determination and Self-Governance
Era (1970s-Present)” has emphasized increasing tribal decisionmaking
authorities.
The complex history between tribes and the United States is reflected in the multiple different
types of land ownership statuses on tribal land. This report focuses on three common types of
land holdings on tribal lands—trust land, restricted fee land, and fee land—and discusses the
characteristics of each type of land status. Trust lands are lands owned by the United States (i.e.,
lands to which the United States holds title) for the benefit of tribes and tribal members. Today,
lands typical y are brought into trust through the land-into-trust process, either when Congress
directs the Secretary of the Interior (Secretary) to bring land into trust or when the Secretary
administratively brings land into trust. Restricted fee lands are lands owned by a tribe or tribal
member that are subject to a restriction against alienation (i.e., sale or transfer) or encumbrance
(i.e., a lien, lease, right-of-way, etc.) by operation of law. Fee lands are lands that are freely
alienable (i.e., salable or transferable) and do not require the federal government’s approval to
alienate or encumber.
This report also discusses al otted land, federal Indian reservations, and the term Indian Country.
These terms are not considered property holdings and can include trust, restricted fee, or fee lands
within the scope of their definitions. Allotments, or al otted land, are trust or restricted fee parcels
of land held by a tribal member. A product of the al otment era, al otments can be highly
fractionated, meaning there could be many landowners—at times hundreds—on one parcel of
land, making it difficult to manage or use the land. Federal Indian reservations are areas reserved
for a tribe, or multiple tribes, as permanent homelands through treaties, executive orders, acts of
Congress, and administrative actions. Indian Country is a legal term that, for criminal
jurisdictional purposes, general y refers to al lands within a federal Indian reservation, al
dependent Indian communities, and al tribal member al otments.2
Land ownership statuses and the federal-tribal trust relationship can pose unique chal enges for
Congress to consider when deliberating tribal land and resource management policies. Some of
these issues involve the discretionary authority Congress provided to the Secretary in bringing
land into trust on behalf of tribes under the Indian Reorganization Act of 1934 (IRA).3 Other
issues relate to the Secretary’s approval authority to encumber trust or restricted fee parcels and
to efforts to reduce fractionation under the Land Buy-Back Program of Tribal Nations (LBBP) by
the Department of the Interior (DOI) under the Claims Resolution Act of 2010.4 Thus, issues for
Congress include the following:
 The Secretary’s authority to process off-reservation land into trust,
 The Secretary’s authority to determine whether a tribe qualifies to bring land into
trust,
 The costs and timeliness of bringing land into trust,
 The requirement for the Secretary’s approval to encumber trust or restricted
parcels of land, and
 The role of the LBBP to further reduce fractionation.
Matters involving tribal land often are complex and can involve a consideration of treaties,
executive orders, case law, acts of Congress, statutes, regulations, and deeds or other land title

2 18 U.S.C. §1151.
3 P.L. 73-383, 25 U.S.C. §§5101 et seq. (formerly 25 U.S.C. §§461 et seq.).
4 P.L. 111-291.
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documents. Given these complexities, this report wil not review in detail any specific tribe’s land
status and history other than for il ustrative purposes. Tribes also may have other interests in
properties, including subsurface estates, historic and cultural y significant properties, hunting and
fishing rights, and ceded treaty lands, among others; these interests are outside the scope of this
report.
The status of land—whether trust, restricted fee, or fee—is closely tied to the ability of a tribe,
state, or federal jurisdiction to exercise its criminal or civil jurisdiction. However, the ownership
of land and the ability to exercise jurisdiction are not the same. At times, this report highlights
how jurisdictional questions might depend on the status of the land. Questions as to which
governmental entity can exercise jurisdiction are often fact intensive and may require a legal
analysis; thus, the exercise of jurisdiction wil not be discussed in detail in this report.
A Note on Terminology
The following terms are defined as such for the purposes of this report:
 Tribal land general y refers to land or an interest in land that is owned by a tribe
or tribal member or by the U.S. government on behalf of a tribe or tribal
member.5
 Indian tribe or tribe refers to a tribal entity made up of American Indians or
Alaska Natives and recognized as having a government-to-government
relationship with the federal government—a relationship that includes eligibility
for funding and services from federal agencies, including the Bureau of Indian
Affairs (BIA).6
 Tribal member general y refers to an American Indian or Alaska Native who is a
member of an Indian tribe.7
The Federal Trust Responsibility and Tribal Lands
Indian tribes are “domestic dependent nations” that exercise “inherent sovereign authority.”8
Indian tribes have a unique relationship with the federal government. One aspect of this special

5 Statutory and regulatory text may use another term instead of tribal land, such as the term Indian land. Often,
statutory or regulatory text will specifically define what constitutes tribal land or Indian land for its purposes; thus, it is
important to consult the particular statute or regulation. Further, at times this report discusses fee or fee sim ple land,
which is land that can be freely alienated (i.e., sold or transferred) without the federal government’s approval. As
discussed in this report, tribes, tribal members, and non -Indians can own fee land. However, this report does not discuss
at length the rights or characteristics of non-Indian owned fee land.
6 See U.S. Department of the Interior (DOI), Bureau of Indian Affairs (BIA), “Frequently Asked Questions,” at
https://www.bia.gov/frequently-asked-questions. As of January 2020, 574 Indian tribes and Alaska Native villages are
federally recognized (see BIA, “ Indian Entities Recognized by and Eligible to Receive Services from the United States
Bureau of Indian Affairs,” 85 Federal Register 20, January 30, 2020, at https://www.federalregister.gov/documents/
2020/01/30/2020-01707/indian-entities-recognized-by-and-eligible-to-receive-services-from-the-united-states-bureau-
of). Often, statutory or regulatory text will specifically define what constitutes an Indian tribe for its purposes.
7 Whether an individual is considered a tribal member may be a factor for purposes of determining who can inherit or
legally hold trust or restricted interests in land. Statutory and regulatory text may use another term, such as the term
Indian, for its purposes. Often, statutory or regulatory text will specifically define what constitutes a tribal m em ber or
an Indian for its purposes. For more information on who is an American Indian or an Alaska Native, see DOI, BIA,
“Frequently Asked Questions,” at https://www.bia.gov/frequently-asked-questions.
8 Oklahoma T ax Comm’n v. Citizen Band Potawatomi T ribe of Okla., 498 U.S. 505, 509 (1991) (quoting Cherokee
Nation v. Georgia, 5 Pet. 1, 17 (1831)).
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Tribal Land and Ownership Statuses: Overview and Selected Issues for Congress

relationship is the doctrine of the federal trust responsibility: a legal obligation under which the
United States, through treaties, acts of Congress, and court decisions, “has charged itself with
moral obligations of the highest responsibility and trust” toward Indian tribes, and this
responsibility can include certain fiduciary obligations on the part of the United States.9
According to the BIA, “in several cases discussing the trust responsibility, the Supreme Court has
used language suggesting that it entails legal duties, moral obligations, and the fulfil ment of
understandings and expectations that have arisen over the entire course of the relationship
between the United States and Indian tribes.”10 The federal trust responsibility can include a duty
on the part of the United States to protect treaty rights, lands, assets, and resources on behalf of
tribes and tribal members.11
The federal trust responsibility plays a significant role in the federal government’s management
of tribal lands and natural resources. For example, the BIA is the lead agency responsible for the
administration and management of 55 mil ion surface acres and 59 mil ion acres of subsurface
mineral estates held in trust by the United States for Indian tribes and individual tribal
members.12 At times, this report wil highlight the federal-tribal trust relationship with respect to
the management of tribal lands.
Historical Framework
The history between tribes and the United States—dating back centuries—plays a role in current
land issues for tribes. For some tribes, the relationship between tribes and the United States
predates the U.S. Constitution and also can include relationships with other sovereigns.13 Tribes
are mentioned in the Constitution in a clause known as the Indian Commerce Clause.14
Three early 19th century Supreme Court cases, known collectively as the Marshal Trilogy,
established a basic framework for federal Indian law and the federal-tribal trust relationship.
Additional y, centuries of federal policymaking with respect to tribes and individual tribal
members had profound effects on the treatment of tribal lands—effects that continue to impact
the management of tribal lands and resources. This section provides an overview of the Marshal
Trilogy and highlights federal policymaking eras involving tribes from the early 1800s to the
present.
Marshall Trilogy
From 1823 to 1832, Supreme Court Chief Justice John Marshal authored the Marshal Trilogy,
which laid the foundation for federal Indian law. The cases discussed the tenets of tribal

9 Seminole Nation v. U.S., 316 U.S. 286, 296-297 (1942). For a general overview of the trust relationship, see U.S. v.
Jicarilla Apache Nation, 564 U.S. 162 (2011).
10 DOI, BIA, “Frequently Asked Questions,” at https://www.bia.gov/frequently-asked-questions.
11 DOI, BIA, “Frequently Asked Questions,” at https://www.bia.gov/frequently-asked-questions.
12 Surface and subsurface acreage numbers obtained via personal communication between CRS and the BIA on June
17, 2021. Acreage amounts are current as of May 2021 .
13 NCAI, Tribal Nations, p. 14. See also Newton, Cohen’s Handbook, §15.03(3)(c) (stating that the United States has
recognized other sovereign land titles granted to tribes that predate the establishment of the United States). For more
information on tribal relationships with other sovereigns and in the formulation of the United States, see Newton,
Cohen’s Handbook, §1.02 (discussing post-contact and pre-constitutional development).
14 U.S. Constitution, Article I, Section 8, clause 3. (“ T o regulate Commerce with foreign Nations, and among the
several States, and with the Indian T ribes ... ”).
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sovereignty, established the roots of the federal-tribal trust relationship, and established the
ownership status of tribal property.15
 In Johnson v. M’Intosh, decided in 1823, the Court established that the United
States acquired absolute title to al lands formerly held by the British Empire.
The Court determined that tribes have the right of occupancy of, or to reside on,
their lands. However, the Court determined that the United States has ultimate
title to the land.16
 In Cherokee Nation v. Georgia, decided in 1831, the Court established that tribes
are “domestic, dependent nations” and stated that the relationship between tribes
and the United States “resembles that of a ward to his guardian.”17 The Court
held that the United States is bound to protect tribes and their right to occupy
their lands.18
 In Worcester v. Georgia, decided in 1832, the Court defined the interactions
between tribes and states. The Court held that states could not impose their laws
or policies within Indian territories absent consent from the tribe or in conformity
with treaties or acts of Congress.19
Although these three cases are known as the foundation of federal Indian law, many cases have
impacted tribal lands since the Marshal Trilogy. An overview of the broader case law is outside
the scope of this report.
Federal Policymaking Eras with Tribes
Congressional action also defined the federal-tribal trust relationship and the extent and
management of tribal lands and resources. Federal policy toward ownership and management of
tribal lands has evolved over time as the federal government’s approaches to tribal relationships
have shifted. These shifts have led to removal, assignment, and restoration of certain ownership
rights at different times. The following sections summarize five eras of development in federal
Indian policy that influenced the ownership and management of tribal lands. The indicated time
frames are approximate.
Removal and Treaty-Making Era (1830-1887)
Under the Indian Removal Act of 1830, Congress directed the President to renegotiate treaties
and exchange existing tribal lands located in the southeastern United States for lands west of the
Mississippi River.20 This direction led to the formation of the first reservations and resulted in
tribes—often forcefully—ceding to the United States larger tracts of land for smal er parcels of
land, sometimes in different parts of the country. On reservations, tribes had sole and continued
right of self-governance, although they were under the federal government’s protection.21

15 For more on tribal sovereignty, see DOI, BIA, “Frequently Asked Questions,” at https://www.bia.gov/frequently-
asked-questions.
16 Johnson v. M’Intosh, 21 U.S. 543 (1823).
17 Cherokee Nation v. Georgia, 30 U.S. 1, 2 (1831).
18 Cherokee Nation v. Georgia, 30 U.S. 1, 74.
19 Worcester v. Georgia, 31 U.S. 515 (1832).
20 Act of May 28, 1830, 4 Stat. 411.
21 NCAI, Tribal Nations, p.14.
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Thereafter, Congress passed a series of Trade and Intercourse Acts—typical y known as the
Nonintercourse Acts—that sought to regulate trade with Indians and prohibited the sale of tribal
lands except at proceedings held under the authority of the United States.22 The Trade and
Intercourse Act of 1834, for example, included a provision prohibiting conveyances, leases, or
encumbrances of land from Indian tribes to non-Indians, unless conducted in the presence of a
U.S. commissioner and ratified by treaty.23
At the end of this era, Congress revoked the President’s authority to enter into treaties with tribes
in the Indian Appropriations Act of 1871.24 Prior to that time, the President had exercised the
authority under the Constitution to enter into treaties with tribes, which included creating
reservations for tribes.25 Treaties ratified by Congress remain in full force, although Congress can
revoke or modify their terms.26
Allotment Period (1887-1934)
During the Al otment Period, federal Indian policy and congressional legislation focused on
efforts to assimilate tribes and their members into mainstream American culture.27 In 1887,
Congress authorized the President to survey specific reservations and divide the land among
individual tribal members. These parcels of land are known as allotments. The General Al otment
Act of 1887—also known as the Dawes Act—specified the lands were to be divided into 80- or
160-acre sections for agricultural or grazing purposes and then al otted to individual tribal
members. Surplus land remaining after the distribution of al otments was sold and homesteaded
to non-tribal members.28
Once a parcel was al otted, it would be held in trust by the federal government for up to 25 years
and would be exempt from state or county taxation. After 25 years, the tribal member would have
fee ownership, meaning he or she would own the title to the parcel free of any encumbrances, if
the Secretary deemed the individual to be competent.29 Once the al otted parcel was transferred
out of trust status, it would be subject to state jurisdiction.30 By the end of the Al otment Period,
nearly two-thirds of the trust al otments passed into non-Indian ownership.31

22 T here were a series of six Nonintercourse Acts from 1790 to 1834. See Act of July 22, 1790, 1 Stat. 137; Act of
March 1, 1793, 1 Stat. 329; Act of May 19, 197 6, 1 Stat. 469; Act of March 3, 1799, 1 Stat. 743; Act of March 30,
1802, 2 Stat. 139; Act of June 30, 1834, 4 Stat. 729. For more information on the Nonintercourse Acts, see Newton,
Cohen’s Handbook, §§1.03(20), 15.06(1), 15.08(1).
23 Act of June 30, 1834, 4 Stat. 729 §12 (codified at 25 U.S.C. §177).
24 25 U.S.C. §71, Act of March 3, 1871, Ch. 120 §1, 16 Stat. 566.
25 Article II, Section 2, clause 2, of the U.S. Constitution grants the President, with the advice and consent of the
Senate, the power to enter into treaties.
26 25 U.S.C. §71, Act of March 3, 1871, Ch. 120 §1, 16 Stat. 566; Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
27 Newton, Cohen’s Handbook, §1.04; see also, Rennard Strickland, “Friends and Enemies of the American Indian: An
Essay Review on Native American Law and Public Policy,” Am erican Indian Law Review, vol. 3, no. 2 (1975), pp.
313-331.
28 Act of February 8, 1887, Ch. 119, 24 Stat. 388. Individual tribal members included heads of households, single
adults, minor orphans, and other single minors. Some of the treaties between the United States and specific tribes
contained similar allotting provisions. Other reservation -specific allotment acts had different requirements. See Act of
May 30, 1908, P.L. 177, 35 Stat. 558.
29 Act of February 8, 1887, Ch. 119, §5, 24 Stat. 388; Act of May 8, 1906, Ch. 2348, 34 Stat. 182.
30 Act of February 8, 1887, Ch. 119, §6, 24 Stat. 388.
31 Newton, Cohen’s Handbook, §16.03(2)(b).
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When an Indian al ottee died, the interest in the al otment was divided among his or her heirs but
the land itself was not divided.32 This situation resulted in numerous individuals owning an
interest in the same parcel of land, and that interest continued to divide—potential y
exponential y—across generations. This is known as fractionation. The situation also fractionated
the ability to use or derive income from the land among many owners, and owners often sought to
sel their interests.33 Combined with the ability of non-Indians to homestead surplus lands, the
result of this policy has been a checkerboard pattern of land ownership within the boundaries of
al otted reservations, creating complicated questions of ownership and tribal authority.34
Reorganization Period (1934-1940s)
In 1934, federal Indian policy shifted toward granting more administrative control to tribal
governments with the IRA. This shift was partly due to the findings of a 1928 report
commissioned by the Secretary to examine the social and economic conditions of American
Indians.35 The report, known as the Meriam Report, concluded that al otment policies contributed
to economic hardships for tribes and tribal members.
The IRA explicitly ended the al otment of tribal reservations and authorized the Secretary to
purchase previously al otted lands, acquire additional lands, restore any remaining surplus
al otment lands, and place those lands into trust status. The IRA and other laws during this era
authorized the Secretary to establish new reservations, among other things.36
Termination Era (1950s-1960s)
Federal Indian policy shifted again when its emphasis turned to ending the federal-tribal
relationship. In 1947, Congress authorized a commission to examine and make recommendations
to improve government efficiency.37 The 1949 findings of this Hoover Commission—a series of
reports and recommendations to Congress on the reorganization of the federal government—
included several proposals intending to integrate tribes and tribal members into the general
population.38
In 1953, Congress declared that certain tribes residing in specific states “be freed from Federal
supervision.”39 During this era, Congress terminated federal recognition of a number of tribes,
eliminating the tribes’ trust status and access to many tribal-specific federal services.40 Congress

32 See Act of June 25, 1910, 36 Stat. 855, as amended (authorizing an Indian allottee to bequest the allotments in a will,
if the Secretary of the Interior approved the will prior to the expiration of the 25 -year trust period).
33 Kevin Gover, “ An Indian T rust for the T wenty-First Century,” Natural Resources Journal, vol. 46, no 2 (Spring
2006), p. 328.
34 See, generally, Indian Land T enure Foundation, “Land T enure Issues,” at https://iltf.org/land-issues/issues/.
35 Lewis Meriam, The Problem of Indian Administration, Institute for Government Research, February 21, 1928; Monte
Mills, “ Why Indian Country? An Introduction to the Indian Law Landscape,” in Indian Law and Natural and Natural
Resources: The Basics and Beyond (Rocky Mt. Min. L. Fdn., 2017), p.10, at https://ssrn.com/abstract=3100251.
36 See, generally, P.L. 73-383, 25 U.S.C. §§5101 et seq.
37 Act of July 7, 1947, P.L. 162.
38 Herbert Hoover et al., The Hoover Commission Report, Commission on Organization of the Executive Branch of the
Governm ent (McGraw-Hill Book Company, Inc., 1949), p. 463; “ Summary of Reports of the Hoover Commission,”
Public Adm inistration Review, vol. 9, no. 2 (1949), p. 95.
39 H.Con.Res. 108, 83rd Cong., 67 Stat. B132 (1953).
40 See, for example, the Menominee T ermination Act of June 17, 1954 (P.L. 83-399, 68 Stat. 250).
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also transferred some civil and criminal jurisdiction over certain areas of Indian Country to
specific states.41
Self-Determination and Self-Governance Era (1970s-Present)
In the 1970s, the United States began to reestablish the federal-tribal trust relationship and
focused on increasing tribal decisionmaking authorities. During this time, Congress reinstated
federal recognition for some tribes and, in some cases, reestablished their reservation boundaries
or took land into trust for the tribe.42
A notable example of congressional legislation emphasizing tribal self-determination and self-
governance is the Indian Self-Determination and Education Assistance Act of 1975 (ISDEAA).43
Title I of ISDEAA authorized federal y recognized tribes to contract with the BIA and the Indian
Health Service to plan and administer some federal services and programs with federal funding,
known as 638 contracts or self-determination contracts.44 In 1994, the Tribal Self-Governance
Act (TSGA) amended ISDEAA and added a new Title IV;45 Title IV authorized federal y
recognized tribes to enter into compacts with DOI to assume full funding and control over
programs, services, functions, or activities that otherwise would be provided by DOI, including
the al ocation of appropriations.46
ISDEAA gave tribes the opportunity to assume responsibility in several areas, including law
enforcement, tribal courts, health care, social services, and natural resources management. The
TSGA expanded tribal authority to manage certain off-reservation programs that have “special
geographic, historical, or cultural significance” to a tribe.47 The TSGA also made DOI program
funds available to tribes to manage eligible programs and services other than from the BIA.48
Overview of Tribal Land and Ownership Statuses
Tribal land may have different designations and ownership statuses. Lands may be owned by the
federal government and held in trust for the benefit of the tribe communal y or tribal members
individual y. Some land ownership statuses restrict the ability of the tribe or individual to alienate
and encumber the land, despite owning the land, without federal approval. Others have no
restrictions against alienation.

41 P.L. 83-280.
42 See, for example, the Menominee Restoration Act of 1973 (P.L. 93-197), the Siletz Indian T ribe Restoration Act of
1977 (P.L. 95-195), and the Paiute Indian T ribe of Utah Restoration Act (P.L. 96-227).
43 P.L. 93-638, 88 Stat. 2293, 25 U.S.C §§5301 et seq. (formerly 25 U.S.C. §450 et seq.). Regulations promulgated at
25 C.F.R. §§900 et seq.
44 See, generally, 25 U.S.C. §5321 (formerly 25 U.S.C. §450f).
45 P.L. 103-413.
46 25 U.S.C. §§5361 et seq. (formerly 25 U.S.C. §§458aa et seq.). Regulation s promulgated at 42 C.F.R. Part 137.
T ribes operating under a compact have more autonomy to make program and spending decisions than tribes operating
under a contract, but a tribe may use a combination of both compact and contr act. Participating tribes are subject to
oversight, audits, and federal spending restrictions. See Brett Kenney, “ T ribes as Managers of Federal Natural
Resources,” Natural Resources & Environment, vol. 27, no. 1 (Summer 2012), p. 48.
47 25 U.S.C. §5363(c) (formerly 25 U.S.C. §458cc).
48 See, for example, Brian Upton, “Returning to a T ribal Self-Governance Partnership at the National Bison Range
Complex: Historical, Legal, and Global Perspectives,” Public Land and Resources Law Review, vol. 35 (2017), pp. 52-
145, at https://scholarship.law.umt.edu/plrlr/vol35/iss1/5/ (discussing the management of the National Bison Range
Complex, a unit of the National Wildlife Refuge System, between the Confederate Salish and Koot enai T ribes and
DOI’s Fish and Wildlife Services under a tribal self-governance agreement).
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The following sections provide an overview of the types and characteristics of land holdings on
tribal lands, focusing on trust lands, restricted fee lands, and fee lands. The following sections
also include a short description of other land designations involving tribal lands, namely al otted
lands, federal Indian reservations, and a note on Indian Country. For a list of the types of land
holdings on tribal lands and other land designations, see Table 1.
Table 1. Types of Tribal Land Holdings and Other Land Designations
Name
Description or Definition
Trust
The U.S. government holds legal title to trust land for the benefit of federal y recognized
Indian tribes (Indian tribes, or tribes) or individual tribal members. The United States holds
in trust approximately 55 mil ion surface acres and 59 mil ion acres of subsurface mineral
estates for tribes and individual tribal members.a
Restricted Fee
Restricted fee land refers to land to which a tribe or individual tribal member holds legal
title, but the title is subject to restrictions by the United States against alienation (sale or
transfer) or encumbrance.b
Fee or Fee Simple
Fee lands or fee simple lands are lands previously conveyed out of tribal ownership that are
freely alienable or can be encumbered without federal approval.c These lands may be
owned by non-Indians and may be purchased and owned by a tribe or individual tribal
members.
Al otted
Al otted lands, or al otments, can be held in trust or restricted fee status. These lands stem
from the treaties and al otment statutes that divided land communal y held by tribes and
al otted parcels of it to individual tribal members.d
Federal Indian
Federal Indian reservation land is land reserved for a tribe (or multiple tribes) under treaty,
Reservation
statute, or other agreement with the United States that establishes permanent tribal
homelands. Reservations are distinguishable from tribal property holdings.e For example, a
reservations can include within its boundaries trust, restricted fee, and fee lands.
Indian Country
For criminal jurisdictional purposes, the term Indian Country general y refers to al lands
within a federal Indian reservation, al dependent Indian communities, and al tribal member
al otments.f
Source: Compiled by CRS.
a. 25 C.F.R. §151.2(d), 25 C.F.R. §169.2. Surface and subsurface acreage numbers obtained via personal
communication between CRS and the BIA on June 17, 2021. Acreage amounts are current as of May 2021.
b. 25 C.F.R. §§151.2(e), 152.1(c).
c. DOI, BIA, Acquisition of Title to Land Held in Fee or Restricted Fee Status (Fee-to-Trust Handbook), June 28, 2016,
at https://www.bia.gov/sites/bia.gov/files/assets/public/raca/handbook/pdf/
Acquisition_of_Title_to_Land_Held_in_Fee_or_Rest ricted_Fee_Status_50_OIMT.pdf.
d. Nel Jessup Newton, ed., Cohen’s Handbook of Federal Indian Law, 2012 Edition, 2017, §§16.03, 1.03(6)(b)
(Newton, Cohen’s Handbook).
e. DOI, BIA, “Frequently Asked Questions,” at https://www.bia.gov/frequently-asked-questions; Newton,
Cohen’s Handbook, §15.02.
f.
18 U.S.C. §1151.
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Trust Lands
Trust lands are lands to which the United States holds title for the benefit of a tribe or an
individual tribal member.49 Trust land held for a tribe’s benefit may be referred to as tribal trust
land. Trust land held for an individual tribal member may be referred to as an individual trust
allotment. Trust land may be held within or outside reservation boundaries.50
Stemming from the Trade and Intercourse Act of 1834, Congress codified broad restrictions
against alienation (sale or transfer) of lands involving tribes, including trust lands.51 Similarly,
individual trust al otments may not be alienated absent federal authority.52 The approval of the
Secretary is required to alienate trust lands, unless Congress provides otherwise.53
Tribal trust lands can be encumbered, and depending on the length and type of encumbrance, the
Secretary’s approval may be required. For instance, certain contracts or agreements that
encumber tribal trust lands for more than seven years without the Secretary’s approval are void.54
Common encumbrances include leases and rights-of-way.55 Individual trust al otments may be
encumbered with the Secretary’s consent.56
Congress has broad authority to manage trust lands. For example, under the General Al otment
Act, Congress broke up communal y held land holdings on reservations and distributed the land
to individual tribal members in the form of allotments.57 In other examples, Congress has the
authority to grant leases and rights-of-way over tribal lands and to modify or remove the
restriction against alienation of trust property.58
The concept of property being held in trust for a tribe or tribal member arose over the long course
of interactions between tribes and the federal government. The Marshal Trilogy established a
framework for the trust relationship between the federal government and tribes and the treatment
of tribal land. Treaties and acts of Congress also considered tribal property being held in trust.59
Today, land can be taken into trust through a process known as the land into trust (or fee-to-trust)
process, which is carried out by the Secretary or the Secretary’s designee.60 Under this process,
land can be taken into trust through either mandatory acquisitions or discretionary acquisitions.61

49 25 C.F.R. §151.2(d), 25 C.F.R. §169.2; see also Newton, Cohen’s Handbook, §15.03.
50 Newton, Cohen’s Handbook, §15.03.
51 25 U.S.C. §177; see generally Newton, Cohen’s Handbook, §15.06.
52 25 U.S.C. §348; see Newton, Cohen’s Handbook, §§16.03(3)(b), (4)(a).
53 25 C.F.R. §152.22.
54 25 U.S.C. §81; 25 C.F.R. Part 84. T he regulations define encumber to mean “a claim, lien, charge, right of entry or
liability” attaching to real property. 25 C.F.R. §84.002.
55 For example, see 25 C.F.R. Part 162 (leases and permits); 25 C.F.R. Part 169 (rights-of-way).
56 For example, see 25 C.F.R. §§162.013, 169.108. For more information about encumbering allotments, see Newton,
Cohen’s Handbook, §16.03(4)(f).
57 Act of February 8, 1887, Ch. 119, 24 Stat. 388, as amended.
58 Newton, Cohen’s Handbook, §5.02(4).
59 Newton, Cohen’s Handbook, §15.03.
60 See, generally, 25 C.F.R. Part 151—Land Acquisitions.
61 For more information on how the BIA processes mandatory and discretionary trust acquisitions, see DOI, BIA,
Acquisition of Title to Land Held in Fee or Restricted Fee Status (Fee-to-Trust Handbook), June 28, 2016, p. 4, at
https://www.bia.gov/sites/bia.gov/files/assets/public/raca/handbook/pdf/
Acquisition_of_T itle_to_Land_Held_in_Fee_or_Restricted_Fee_Status_50_OIMT.pdf . Hereinafter, BIA, Fee-to-Trust
Handbook.
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Tribal Land and Ownership Statuses: Overview and Selected Issues for Congress

Mandatory acquisitions occur when Congress directs the Secretary to take land into trust on
behalf of a tribe. For example, in December 2019, Congress recognized the Little Shel Band of
Chippewa Indians as a federal y recognized Indian tribe. At the same time, Congress directed the
Secretary to acquire 200 acres of land in trust for the benefit of the tribe.62 The Secretary also may
be mandated by court order to take land into trust.63
Benefits to Tribes When Land
With the exception of certain mandatory acquisitions,
Is Held in Trust
discretionary trust acquisitions require the Secretary’s
approval to bring the land into trust.64 The Secretary has
The Bureau of Indian Affairs (BIA) reports
that land held in trust provides many
the authority under the IRA to take land into trust on
benefits to Indian tribes. Some of these
behalf of tribes.65 DOI’s policy toward trust land
benefits include housing opportunities,
acquisitions for tribes is to acquire lands when the
energy development, and the protection
property is located within or adjacent to reservation
of cultural resources. Further, certain
federal programs and services may be
boundaries; a tribe already owns an interest in the land;
available only on reservations or trust
or the acquisition facilitates tribal self-determination,
lands.
economic development, or Indian housing. For tribal
The Office of Indian Energy and Economic
members, DOI also may acquire land in trust when the
Development in the Office of the
land is within the boundaries of or adjacent to the
Assistant Secretary-Indian Affairs also
reservation or when the land is already in trust or
identifies potential economic benefits of
bringing land into trust. These benefits
restricted status, such as a fractionated interest in land.66
include the possibility of taking advantage
Acquisitions for off-reservation parcels require additional
of certain tax credits and tax-exempt
processes compared with on-reservation acquisitions.67
financing, among others.
Further, a 2009 Supreme Court case, Carcieri v. Salazar,
Sources: Department of the Interior
decided that only tribes that were federal y recognized
(DOI), Land Buy-Back Program for Tribal
under the IRA prior to 1934 (the year in which the IRA
Nations, “Land Buy-Back Program for
was enacted) could petition to reserve land in trust.68
Tribal Nations,” at https://www.bia.gov/
bia/ots/fee-to-trust. See DOI, BIA, “Fee to
Trust,” at https://www.bia.gov/bia/ots/fee-
Restricted Fee Lands
to-trust; and DOI, BIA, Converting Fee
Land into Trust Land and the Associated
Restricted fee lands are lands owned by a tribe or a tribal
Economic Benefits, pp. 7-10, at
member that are subject to a restriction against alienation
https://www.bia.gov/sites/bia.gov/files/asset
s/as-ia/ieed/pdf/Fee_to_Trust.pdf.
or encumbrance. Such restriction is contained in the
conveyance instrument, pursuant to federal law, or

62 P.L. 116-92 , §2870.
63 BIA, Fee-to-Trust Handbook, p.5.
64 BIA, Fee-to-Trust Handbook, p.4; but see G. William “Bill” Rice, “ Section 5: Indian T rust Land Acquisitions, and
Secretarial Authority,” Arizona State Law Journal, vol. 52, no. 2 (2020), at https://arizonastatelawjournal.org/2020/08/
12/section-5-indian-trust-land-acquisitions-and-secretarial-authority/ (asserting the Secretary of the Interior’s approval
may not be required to bring land into trust for tribes that purchase land to be placed into trust).
65 25 U.S.C. §5108.
66 25 C.F.R. §§151.3, 151.7.
67 25 C.F.R. §151.10 (on-reservation acquisitions); 25 C.F.R. §151.11 (off-reservation acquisitions); see, generally,
BIA, Fee-to-Trust Handbook; see also DOI, BIA, “ Chapter 15: Off Reservation Fee-to-Trust Decision,” in “ Part 52:
Real Estate Services,” in Indian Affairs Manual, at https://www.bia.gov/policy-forms/manual.
68 Carcieri v. Salazar, 555 U.S. 379 (2009). For more information on this court case, see CRS Report RL34521,
Carcieri v. Salazar: The Secretary of the Interior May Not Acquire Trust Land for the Narraganse tt Indian Tribe
Under 25 U.S.C. Section 465 Because That Statute Applies to Tribes “Under Federal Jurisdiction” in 1934 , by M.
Maureen Murphy.
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because federal law imposes it.69 Restricted fee land owned by a tribe may be referred to as
restricted fee tribal land. Restricted fee land owned by an individual tribal member may be
referred to as a restricted allotment. Like trust lands, Congress’s broad restriction against
alienation of lands involving tribes includes restricted fee lands.70 The approval of the Secretary is
required to alienate restricted fee lands, unless Congress provides otherwise.71 Also like tribal
trust lands, restricted fee tribal lands can be encumbered; depending on the length and type of
encumbrance, the Secretary’s approval may be required.72 Restricted al otments may be
encumbered with the Secretary’s consent.73
Some lands are considered restricted fee lands as a result of historical negotiations between a
tribe and the federal government, such as through treaties.74 Congress also can direct that land be
placed into restricted fee status. For example, Seneca Nation Settlement Act of 1990 authorized
the Secretary to acquire land near the Seneca Nation’s former reservation lands and to hold the
lands in “restricted fee status by the Seneca Nation.”75 The federal government also may
promulgate regulations pertaining to specific restricted fee parcels, such as requiring the
Secretary’s approval for exchange of restricted fee parcels on the Osage reservation.76
For some purposes, Congress has defined tribal lands to include both trust and restricted fee
lands, such as for leasing Indian agricultural lands, rights-of-way, and Indian energy.77 For
practical purposes, trust and restricted fee lands often are treated the same. For example, with a
few exceptions, trust and restricted fee properties are treated the same for purposes of probate.78
However, Congress does not often enact statutes that impose specific duties on DOI with respect
to restricted fee lands. Thus, DOI may have certain land management responsibilities to trust
lands, due to the federal-tribal trust relationship, but those responsibilities do not pertain to
restricted fee lands.79
Fee Lands
Fee lands, sometimes referred to as fee simple lands, are lands owned by a person who can freely
alienate or encumber the land without federal approval.80 Many fee lands were conveyed out of
tribal and individual tribal member ownership during the Al otment Period (for more information
see “Al otment Period (1887-1934)”). Thus, fee lands within reservation boundaries can be
owned by non-Indians, which may be referred to as non-Indian-owned fee lands.

69 25 C.F.R. §§151.2(e), 152.1(c); see also DOI, Solicitor’s Opinion M-37023, “Applicability of 25 U.S.C. § 2719 to
Restricted Fee Lands,” January 18, 2009, at https://www.doi.gov/solicitor/opinions. Hereinafter, M-Opinion 37023.
70 25 U.S.C. §177.
71 25 C.F.R. §152.22.
72 See, for example, 25 U.S.C. §81; 25 C.F.R. Part 84; 25 C.F.R. Part 162; 25 C.F.R. Part 169.
73 For example, see 25 C.F.R. §§162.013, 169.108.
74 See, for example, T reaty with the Seneca and Shawnee, 1832, 7 Stat. 411; see also M-Opinion 37023.
75 P.L. 101-503, §8(c).
76 25 C.F.R. §158.54.
77 For leasing of Indian agricultural lands, see 25 U.S.C. §3703. For rights-of-way, see 25 U.S.C. §323. For Indian
energy, see 25 U.S.C. §3501.
78 25 C.F.R. §15.2, “restricted property.”
79 M-Opinion 37023, pp. 3-4, 6.
80 BIA, Fee-to-Trust Handbook, p. 5.
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Even after the Al otment Period, trust or restricted fee lands can be converted to fee lands. For
instance, if an individual tribal member mortgages his or her trust or restricted fee property and
defaults on the loan, the property may pass into fee status if the property is sold to satisfy the
debt.81 In another example, individual tribal members can request the Secretary to remove the
restriction against alienation on trust or restricted fee lands, making the parcel freely alienable.82
Tribes or individual tribal members also can purchase and own fee land and may request that
these lands be placed into trust status (for more about the land-into-trust process, see “Trust
Lands,” above).83 Fee lands owned by tribes may be referred to as tribal fee lands, and fee lands
owned in fee by tribal members may be referred to as individually owned fee lands. Non-Indian-
owned fee land purchased by a tribe or individual tribal member may not be freely alienable due
to the broad language in the Nonintercourse Act and its implementing regulations.84 Some courts
have held that the Nonintercourse Act applies to such lands, while others have held that it does
not.85 In some instances, Congress has enacted legislation approving the alienation of tribal fee
land.86
Although the BIA is the primary agency responsible for oversight of tribal lands, the BIA does
not have a role in land management activities that include fee interests, such as for leases or
rights-of-way.87 However, the BIA may have limited responsibilities regarding fee land held by
tribes, such as recording land title documents.88
Allotted Land
Allotted lands, or allotments, are lands held in trust or restricted fee status by individual tribal
members.89 Al otted lands stem from treaties and al otment statutes that divided parcels of land
held communal y by tribes among individual tribal members.90 The term allotted lands does not
necessarily signify a land status, since most al otted lands are held in trust or restricted fee, but

81 25 U.S.C. §5135 (formerly 25 U.S.C. §483a); 25 C.F.R. §152.34. For more information on how the BIA reviews and
processes mortgage loan requests, see DOI, BIA, Indian Affairs Mortgage Handbook 51 IAM 4-H, July 15, 2019, p. 4,
at https://www.bia.gov/node/14587/handbook/attachment/newest/.
82 25 U.S.C. §5134 (formerly 25 U.S.C. §483); see, generally , 25 C.F.R. Part 152.
83 25 C.F.R. Part 151; Newton, Cohen’s Handbook, §15.04(5).
84 Nonintercourse Act, 25 U.S.C. §177; 25 C.F.R. §152.22(b). See Newton, Cohen’s Handbook, §15.06(4); see also
Mark A. Jarboe and Daniel B. Watts, “ Can Indian T ribes Sell or Encumber T heir Fee Lands Without Federal
Approval?,” Am erican Indian Law Journal, vol. 0, issue 1, article 2 (2012), at https://digitalcommons.law.seattleu.edu/
ailj/vol0/iss1/2/ (hereinafter, Jarboe, “ Can T ribes Sell Fee Lands Without Federal Approval?”).
85 Compare T onkawa T ribe of Oklahoma v. Richards, 75 F.3d 1039, 1045 (5 th Cir. 1996) (“The Nonintercourse Act
protects a tribe’s interest in land whether that interest is based on aboriginal right, purchase, or transfer from a state.”)
with Lummi Indian T ribe v. Whatcom County, 5 F.3d 1355 , 1359 (9th Cir. 1993) (holding that the Nonintercourse Act
does not apply to lands reacquired by a tribe in which the federal government previously removed the restraint against
alienation); see also Newton, Cohen’s Handbook, §15.06(4); Jarboe, “ Can T ribes Sell Fee Lands Without Federal
Approval?”
86 For example, see P.L. 108-204, §126 (authorizing unrestricted sale or transfer of non-trust land held by the Shakopee
Mdewakanton Sioux Community).
87 25 C.F.R. §162.004 (leases that include fee interests); 25 C.F.R. §169.3 (regarding rights-of-way over fee lands).
88 DOI, BIA, “Chapter 2: Recording and Custody of Land T itle Documents,” in “Part 51: Land T itles and Records,” in
Indian Affairs Manual, p. 3, at https://www.indianaffairs.gov/policy-forms/manual.
89 Newton, Cohen’s Handbook, §16.03.
90 Newton, Cohen’s Handbook, §1.03(6)(b).
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some statutes directly reference the term allotted lands.91 (For more information on the al otment
era, see “Al otment Period (1887-1934).”)
Al otments can pose chal enges for tribes and for federal agencies managing lands for tribes.
Al otted land led to fractionation of the land, which occurred when the undivided interest from
the original al ottees was passed down to multiple heirs. The number of heirs inheriting undivided
interests in the same al otments increases with each generation. The DOI Land Buy-Back
Program (LBBP) reported that nearly 100,000 tracts of land held in trust or restricted status had
multiple owners with fractional interests.92 Nearly 2.5 mil ion fractionated interests are owned by
almost 243,000 landowners, and nearly 98% of these landowners have less than 25% ownership
interest.93 Each of these inheritors owns an undivided interest in the entire al otment, meaning
none of the heirs has a right to any specific parcel of land or “piece” of the al otment.
Additional y, when some al otted lands passed into fee, the result created a pattern of land
ownership, commonly referred to as checkerboarding—where fee parcels are interspersed with
trust or restricted fee parcels.94 (For example, see Figure 1.) Checkerboarding, combined with
tracts that have multiple co-owners—sometimes hundreds—can cause jurisdictional chal enges.
This can complicate pursuing projects such as economic development or infrastructure projects
that cross parcels of different ownership statuses in checkerboard areas on a reservation. In
addition, fractionated ownership also can make it difficult to obtain access to cultural sites.95

91 See, for example, 25 U.S.C. §396 (leasing of allotted lands for mineral purposes).
92 For more information on DOI’s Land Buy-Back Program for T ribal Nations (LBBP), see https://www.doi.gov/
buybackprogram.
93 DOI, LBBP, “Fractionation,” at https://www.doi.gov/buybackprogram/fractionation.
94 Indian Land T enure Foundation, “Land T enure Issues,” at https://iltf.org/land-issues/issues/.
95 DOI, LBBP, “Fractionation,” at https://www.doi.gov/buybackprogram/fractionation.
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Tribal Land and Ownership Statuses: Overview and Selected Issues for Congress

Figure 1. Selected Lands of the Agua Caliente Band of Cahuilla Indians

Source: Used with permission from the Agua Caliente Band of Cahuil a Indians (“Band”). Modified by CRS.
Notes: For il ustrative purposes, this map demonstrates the variation and complexity of tribal land holdings and
other land designations, including trust lands, al otted lands, fee lands, and lands that are on- and off-reservation.
The band indicates that “Tribal” and “Tribal Outside Reservation” refers to tribal trust and tribal fee land. The
scale bar refers to sections in the overal figure.
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Tribal Land and Ownership Statuses: Overview and Selected Issues for Congress

The federal government also may require majority consent of individual landowners to develop
land. For example, the BIA wil approve leases only with the approval of a majority percentage of
landowners and wil not grant a right-of-way over an individual y owned parcel without the
majority consent of the landowners.96 Because some parcels have many landowners, obtaining
consent of the landowners can be costly and time consuming.97 As a result, many highly
fractionated tracts are underutilized, unoccupied, or unavailable for any purpose. Leasing and
other income received for use of fractionated land is divided among the owners, such that each
owner often receives only a nominal amount depending on the person’s undivided ownership
interest.98
In the 1980s, Congress addressed fractionation with the Indian Land Consolidation Act (ILCA).99
One of ILCA’s provisions authorized an escheat—or transfer—of a deceased tribal member’s
undivided fractional interests of 2% or less of trust or restricted properties and earning less than
$100 over a one-year period to the tribe with jurisdiction.100 However, in 1987, the Supreme
Court found these provisions to be an unconstitutional taking under the Fifth Amendment.101 In
the interim, Congress amended ILCA to extend the one-year period to a five-year period and to
provide that tribal members could devise—or pass through a wil —their interests to another
owner of undivided factional interests, among other things.102 In 1997, the Supreme Court also
found the amended provisions to be an unconstitutional taking under the Fifth Amendment.103
In November 2000, Congress passed the Indian Land Consolidation Act Amendments of 2000,104
which included revisions to the escheatment process and intended to reduce fractionation,
consolidate land ownerships, and reverse the effects of al otment on tribes.105 Before those
provisions could become effective, however, Congress amended ILCA again through the
American Indian Probate Reform Act of 2004 (AIPRA).106 AIPRA revised how a deceased tribal
member’s trust or restricted property is devised to heirs, also in an effort to reduce fractionation.
For smal fractionated interests, AIPRA created the single heir rule, which al ows interests less
than 5% to go to a single heir (rather than multiple heirs) in the absence of a wil . If there are no
eligible heirs, the interest wil pass to the tribe with jurisdiction.107
One approach to addressing fractionation evolved from a settlement over the federal
government’s ability to execute its fiduciary trust responsibility over trust lands and associated

96 25 U.S.C. §2218; 25 U.S.C. §324 (providing that for numerous landowners, the Secretary of the Interior can
determine that obtaining consent is impracticable if he or she also determines that the right -of-way grant would not
cause substantial injury to the land or landowner).
97 See, for example, Government Accountability Office (GAO), Indian Issues: Observations on Some Unique Factors
That May Affect Econom ic Activity on Tribal Lands, GAO-11-543T , April 7, 2011, p. 10, at https://www.gao.gov/
products/GAO-11-543T .
98 DOI, LBBP, “Fractionation.”
99 P.L. 97-459.
100 P.L. 97-459, §207.
101 Hodel v. Irving, 481 U.S. 704 (1987).
102 P.L. 98-608, §4.
103 Babbitt v. Youpee, 519 U.S. 234 (1997).
104 P.L. 106-462.
105 P.L. 106-462.
106 P.L. 108-374.
107 P.L. 108-374. For more information on Indian probate, see DOI, BIA, “Your Land Your Decision – What Is a
Probate?,” at https://www.bia.gov/bia/ots/dop/your-land; DOI, BIA, “Estate Planning,” at
https://www.indianaffairs.gov/bia/ots/dres/estate-planning. See also Newton, Cohen’s Handbook, §16.05.
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resources. In 1996, Eloise Cobel sued DOI, al eging mismanagement of trust assets of individual
tribal members.108 After more than a decade of litigation, in 2009 the U.S. government agreed to a
negotiated settlement, which was contingent upon the enactment of legislation.109 In 2010,
Congress passed the Claims Resolution Act of 2010, authorizing the settlement agreement.110 In
addition to payments to individual tribal members, the settlement authorized up to $1.9 bil ion for
a program to acquire fractionated lands and return them to tribal ownership within 10 years. The
LBBP carries out this responsibility.111
Federal Indian Reservations
Federal Indian reservations are areas reserved for a tribe, or multiple tribes, as permanent
homelands through treaties, executive orders, acts of Congress, or by administrative action.
According to the BIA, the federal government administers approximately 326 land areas as Indian
reservations. Not al Indian reservations may be cal ed reservations; some may be referred to as
pueblos, rancherias, missions, villages, or communities. Notably, not al tribes have a reservation;
some of these tribes could stil have lands held in trust or restricted fee, and some tribes may be
landless.112
The term Indian reservation is distinguishable from tribal property holdings.113 For example,
within a tribe’s reservation boundaries, there can be trust, restricted fee, and fee lands. Tribes also
may have trust parcels and may own lands in fee simple outside of reservation boundaries. For
example, see Figure 1.
Congress can create and add to existing
reservations. For example, the 116th Congress
Settling Reservation Boundaries in
took lands into trust for the Lytton Rancheria
McGirt v. Oklahoma
of California and stated that the lands would
On July 9, 2020, in a 5-4 ruling, the Supreme Court
be made a part of the tribe’s reservation.114
held that land reserved for the Muscogee (Creek)
Additional y, reservations can be established
Nation (tribe) in the 19th century remained “Indian
administratively.
Country" for criminal jurisdiction purposes. In an
115
opinion authored by Justice Neil Gorsuch, the Court
Understanding whether and where a tribe has
held that Congress had established a reservation for
the tribe. Despite creating the State of Oklahoma and
reservation boundaries can be important for
limiting tribal sovereignty within that area in the
jurisdictional purposes. Questions on the
intervening years, the Court further held that Congress
exercise of jurisdiction are often complex and
had never disestablished the Creek reservation in
can involve a variety of factors, such as laws
eastern Oklahoma. According to the dissenting opinion,
and fact-intensive inquiries, including the
the tribe’s reservation boundaries span 3 mil ion acres.
status of the land in question (i.e., trust,
Sources: McGirt v. Oklahoma, 140 S. Ct. 2452 (2020);
CRS Legal Sidebar LSB10527, This Land Is Whose Land?
restricted fee, or fee land). Additional y, the
The McGirt v. Oklahoma Decision and Considerations for
existence of some tribes’ reservation
Congress, by Mainon A. Schwartz.
boundaries may be unsettled. (See “Settling

108 Cobell v. Salazar, 573 F.3d 808 (D.C. Cir. 2009).
109 Class Action Settlement Agreement, Cobell v. Salazar, No. 1:96CV01285-JR, at 2 (December 7, 2009).
110 Also known as the Claims Resettlement Act of 2010, P.L. 111-291.
111 DOI, “Land Buy-Back Program for T ribal Nations,” at https://www.doi.gov/buybackprogram.
112 DOI, BIA, “Frequently Asked Questions,” at https://www.bia.gov/frequently-asked-questions.
113 See Newton, Cohen’s Handbook, §15.02.
114 P.L. 116-92, §2869(c).
115 25 U.S.C. §5110 (formerly 25 U.S.C. §467); see, generally, BIA, Fee-to-Trust Handbook (establishing the process
in which the BIA can simultaneously process a reservation proclamation request with a land-into-trust application).
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Reservation Boundaries in McGirt v. Oklahoma” text box.) The exercise of jurisdiction and the
existence of reservation boundaries are outside the scope of this report but serve to demonstrate
the complexities tribes and federal land management agencies face when determining how tribal
lands and natural resources can be managed.
A Note on Indian Country
For purposes of criminal jurisdiction, the term Indian Country, as statutorily defined, general y
refers to al lands within an Indian reservation, al dependent Indian communities, and al tribal
member al otments.116 Other statutes define Indian Country in manners similar to the criminal
jurisdiction definition.117
The term Indian Country is not a land status and is distinguishable from tribal property holdings.
The definition of Indian Country can assist in determining which entity—state, tribal, or
federal—can exercise jurisdiction when matters involve tribes, tribal members, and non-
Indians.118 The term considers reservation boundaries and the status of lands, such as trust,
restricted fee, or fee lands, including al otments.119
The components of the definition of Indian Country have been litigated often. An in-depth look at
the exercise of state, tribal, or federal jurisdiction, which can include complexities involving the
definition of Indian Country, is outside the scope of this report. Indian Country is noted here to
assist in distinguishing the differences and interdependencies between the exercise of jurisdiction
and tribal land holdings.
Issues and Options for Congress
The following sections identify potential issues for Congress regarding the status of trust or
restricted fee lands owned by tribes and tribal members. Several issues for Congress relate to the
land-into-trust process, including considerations related to off-reservation parcels, the Supreme
Court’s Carcieri decision, and the cost and timeliness of the process. Other issues for Congress
include requirements for the Secretary’s approval to encumber trust or restricted fee parcels and
the status of the LBBP.
Processing Off-Reservation Land into Trust
An issue for Congress could be the administrative process for trust acquisitions of land located
off of a reservation. The majority of trust acquisitions are not controversial,120 but some decisions
to take lands into trust can be contentious. For instance, decisions to take off-reservation land into
trust for gaming purposes can be controversial and may be contested by states, local governments,
and sometimes other tribes.121 In June 2017, the acting DOI Deputy Secretary testified before the

116 18 U.S.C. §1151.
117 See, for example, 33 U.S.C. §1377; 23 U.S.C. §402.
118 For example, see McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).
119 See generally, Newton, Cohen’s Handbook, §3.04.
120 T estimony of NCAI Secretary Ron Allen, in U.S. Congress, Senate Committee on Indian Affairs, Examining
Executive Branch Authority to Acquire Trust Lands for Indian Tribes, hearings, 111th Cong., 1st sess., May 21, 2009,
S.Hrg. 111-136 (Washington, DC: GPO, 2010).
121 See, for example, Heidi McNeil Staudenmaier and Brian Daluiso, “Current Battles and the Future of Off -
Reservation Indian Gaming,” Indian Gaming Lawyer (Spring 2017), pp. 13-15, at https://www.swlaw.com/assets/pdf/
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House Subcommittee on Indian, Insular, and Alaska Native Affairs that taking off-reservation
land into trust also has the potential to cause jurisdictional uncertainties and can have tax and
economic consequences for non-Indian communities.122
In 2017 and 2018, DOI held listening sessions and consultations with tribes in an effort to update
the land-into-trust regulations.123 DOI issued proposed draft regulations focusing on the process
for off-reservation acquisitions and on creating separate processes for gaming acquisitions and
acquisitions for other purposes.124 The scheduled consultations concluded in 2018, and the
regulations were not updated.
During the consultation period, DOI received over 120 written comments from tribes, tribal
organizations, state and local governments, and other interested stakeholders.125 Some tribes
opposed the proposed revisions to the regulations, citing various reasons. For example, some
stated that the proposed revisions would make bringing land into trust more difficult for tribes.
Others opposed more deference to state and local governments. Stil others opposed any
diminishment of the Secretary’s authority to bring land into trust. The State of Wyoming and the
California State Association of Counties (CSAC) also provided comments, stating that their
governments would like more inclusion and opportunities to provide input throughout the land-
into-trust process, among other suggestions.126 CSAC asserted its belief that Congress should
amend the IRA to provide for a statutory process that establishes objective standards for bringing
land into trust.127
An issue for Congress is whether to consider oversight or legislative options to address concerns
related to the administration of the land-into-trust process. Legislative options could include, for
example, establishing a statutory scheme for the land-into-trust process. In 2015 and in 2017,
Congress held two oversight hearings on the adequacy of the standards for trust land acquisitions
under the IRA.128 Alternatively, Congress might decide that issues related to the land-into-trust
process are best addressed through administrative processes.
Establishing a statutory framework for the land-into-trust process could have several implications.
These could include the potential resolution of jurisdiction and taxation matters, for example.
Another implication could be the potential for addressing concerns related to administrative
burdens the BIA and tribes have in bringing land into trust, such as funding or timing concerns.

news/2017/05/01/IGL%20Spring%202017.pdf.
122 U.S. Congress, House Committee on Natural Resources, Subcommittee on Indian, Insular, and Alaska Native
Affairs, Com paring 21st Century Trust Land Acquisitions with the Intent of the 73 rd Congress in Section 5 of the Indian
Reorganization Act, oversight hearing, 115th Cong., 1st sess., July 13, 2017.
123 25 C.F.R. Part 151.
124 DOI, RACA, “Consultation Draft Part 151 Land Acquisitions §§151.11 -151.122,” at https://www.bia.gov/sites/
bia.gov/files/assets/as-ia/raca/pdf/Consultation%20Draft%20-%20Trust%20Acquisition%20Revisions.pdf.
125 DOI, Office of Regulatory Affairs and Collaborative Action (RACA), “Fee-to-Trust Regulations (25 CFR 151),” at
https://www.bia.gov/as-ia/raca/archived-regulatory-efforts/fee-trust-regulations-25-cfr-151. Hereinafter, RACA, “ Fee-
to-T rust Regulations.”
126 See, generally, RACA, “Fee-to-Trust Regulations.”
127 RACA, “Fee-to-Trust Regulations.”
128 U.S. Congress, House Committee on Natural Resources, Subcommittee on Indian, Insular, and Alaska Native
Affairs, Inadequate Standards for Trust Land Acquisition in the Indian Reorganization Act (IRA) of 1934 , oversight
hearing, 114th Cong., 1st sess., May 14, 2015; U.S. Congress, House Committee on Natural Resources, Subcommittee
on Indian, Insular, and Alaska Native Affairs, Com paring 21st Century Trust Land Acquisitions with the Intent of the
73rd Congress in Section 5 of the Indian Reorganization Act, oversight hearing, 115th Cong., 1st sess., July 13, 2017.
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Establishing a statutory process could also address issues related to the role of state and local
governments in the land-to-trust process. Although state and local government stakeholders may
welcome the opportunity to provide more input, some tribes may disagree with providing state
and local governments with greater input opportunities. For example, some tribes may assert that
the United States’ federal trust responsibility to tribes, as wel as the IRA’s policy to restore
homelands to tribes, would further preclude or limit state and local government input into the
land-into-trust process. Further, DOI has previously testified against a statutory amendment to the
IRA, stating that the Secretary’s discretion under the IRA and land-into-trust standards are
adequate.129
The Land-into-Trust Process After Carcieri
Another issue is related to the Secretary’s determination of whether a tribe qualifies to petition to
bring land into trust. Carcieri v. Salazar, a 2009 Supreme Court case, narrowed the scope of tribes
eligible to do so by deciding that only tribes that were federal y recognized under the IRA prior to
1934 could petition to reserve land in trust.130 After the Carcieri decision, the DOI Solicitor’s
Office created different processes for evaluating whether a tribe is considered to be “under federal
jurisdiction.” Initial y, the Solicitor created a two-part test.131 However, in March 2020, the DOI
Assistant Secretary-Indian Affairs, at the recommendation of the Solicitor’s Office, replaced the
two-part test with a four-step process.132 Both processes have been at the center of litigation for
the Mashpee Wampanoag Tribe, which had land taken into trust and then out of trust by DOI.133
Congress may choose to address issues raised by the Carcieri decision. Congress may prefer to
al ow the process to proceed with no changes. Alternatively, Congress may consider oversight
and legislative options, such as amending the IRA to address the Secretary’s authority to bring
land into trust since the 2009 Carcieri decision. For example, legislation introduced in the 116th
Congress would amend the IRA and the Secretary’s authority to bring land into trust to apply to
al tribes, regardless of date of recognition.134 In 2017, Congress held an oversight hearing on the
Secretary’s authority to bring land into trust in light of Carcieri.135

129 T estimony of Kevin Washburn, Assistant Secretary-Indian Affairs, Department of the Interior, in U.S. Congress,
House Natural Resources Committee, Inadequate Standards for Trust Land Acquisition in the Indian Reorganization
Act (IRA) of 1934, oversight hearing, 114th Cong., 1st sess., May 14, 2015.
130 Carcieri v. Salazar, 555 U.S. 379 (2009). For more information on this court case, see CRS Report RL34521,
Carcieri v. Salazar: The Secretary of the Interior May Not Acquire Trust Land for the Narragansett Indian Tribe
Under 25 U.S.C. Section 465 Because That Statute Applies to Tribes “Under Federal Jurisdiction” in 1934 , by M.
Maureen Murphy.
131 DOI, Solicitor’s Opinion M-37029, “The Meaning of ‘Under Federal Jurisdiction’ for Purposes of the Indian
Reorganization Act,” March 12, 2014, at https://www.doi.gov/solicitor/opinions.
132 DOI Solicitor’s Opinion M-37055, “Withdrawal of Solicitor’s Opinion, ‘T he Meaning of ‘Under Federal
Jurisdiction’ for Purposes of the Indian Reorganization Act,’” March 9, 2020, at https://www.doi.gov/solicitor/
opinions; see also DOI Solicitor’s Memorandum, “ Procedure for Determining Eligibility for Land intro T rust Under the
First Definition of ‘Indian’ in Section l9 of the Indian Reorganization Act,” March 10, 2020 , at https://www.bia.gov/
sites/bia.gov/files/assets/bia/ots/pdf/
Solicitors_Procedures_for_Determining_Eligibility_for_Land_into_Trust_under_Category_1.pdf . For more
information on the four-step process, see CRS Legal Sidebar LSB10460, BIA’s New Take on Taking Land into Trust
for Indians, by M. Maureen Murphy.
133 For more information this litigation, see CRS Legal Sidebar LSB10533, Mashpee Wampanoag v. Bernhardt: A Tale
of Two Definitions of “Indian”, by M. Maureen Murphy.
134 S. 2808 S. 2808, H.R. 375. A similar bill—H.R. 130—was introduced in the 115th Congress. All three bills also
would extend the Secretary of the Interior’s authority to take land into trust in Alaska.
135 U.S. Congress, House Committee on Natural Resources, Subcommittee on Indian, Insular, and Alaska Native
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Cost and Timeliness of the Land-into-Trust Process
The process of bringing land into trust can be expensive and time consuming for tribes to pursue.
Some tribes have commented on the length of time for the BIA to process trust acquisitions and
the cost for tribes in purchasing fee lands prior to converting the land into trust.136 Some tribes
have participated in alternative structures to facilitate the land-into-trust application process. For
instance, some tribes in California participate in the California Fee-to-Trust Consortium, which
al ocates tribal government funding to the BIA to assist in processing trust acquisitions, aiming to
reduce the time it takes to bring land into trust.137
An issue for Congress could be whether current BIA funding is sufficient for the agency to
process, and for tribes to pursue, bringing land into trust. Congress may consider DOI’s
processing times of applications from each BIA region and the approximate costs for the BIA and
tribes of bringing land into trust.
Secretarial Approval to Encumber Trust or Restricted Fee Lands
Situations when the Secretary’s approval is required to encumber trust or restricted lands may be
an issue for Congress. Tribes obtain benefits when their land is held in trust or restricted fee
status, but one potential disadvantage could be that the Secretary’s approval is required, with
some exceptions, to encumber lands held in trust or restricted fee status, such as for leasing and
rights-of-way.138 For example, with respect to energy resource development, some of the BIA’s
actions and decisions include reviewing and approving surface and subsurface leases, dril ing
permits, rights-of-way, cultural resources surveys, and environmental studies and surveys.139
Energy and natural resource projects also may require approval from various other federal
agencies.140 Individual tribal members or tribes that own their land in fee simple status are not
subject to these statutory and regulatory requirements to the same extent.
Congress has passed legislation that, if certain conditions are met, removes the requirement for
the Secretary’s approval for certain leasing, business agreements, and rights-of-ways on trust and
restricted fee lands. For example, in 2012, Congress passed the Helping Expedite and Advance

Affairs, Com paring 21st Century Trust Land Acquisition with the Intent of the 73 rd Congress in Section 5 of the Indian
Reorganization Act, oversight hearing, 115th Cong., 1st sess., July 13, 2017.
136 See generally, GAO, BIA’s Efforts to Impose Time Frames and Collect Better Data Should Improve the Processing
of Land in Trust Applications, GAO-06-781, July 28, 2006, at https://www.gao.gov/products/GAO-06-781; see also
Indian Country Today, “ Oklahoma Indians Guiding the Way for Land-into-Trust,” at https://indiancountrytoday.com/
archive/oklahoma-indians-guiding-the-way-for-land-into-trust-RuuaAu3iW0-loJFuUbfNeQ; Harvard Project on
American Indian Economic Development, “California Fee-to-Trust Consortium,” September 14, 2011, at
https://hpaied.org/publications/california-fee-trust-consortium.
137 For an overview and background of the California Fee-to-T rust Consortium, see Harvard Project on American
Indian Economic Development, “California Fee-to-Trust Consortium,” September 14, 2011, at https://hpaied.org/
publications/california-fee-trust-consortium.
138 For example, see 25 C.F.R. Part 162 (leases and permits), 25 C.F.R. Part 169 (rights-of-way).
139 GAO, Indian Energy Development: Poor Management by BIA Has Hindered Energy Development on Indian Lands,
GAO-15-502, June 8, 2015, p. 4, at https://www.gao.gov/products/GAO-15-502.
140 For example, within DOI, t he Bureau of Land Management, Office of Natural Resources Revenue, and—depending
on the energy resource—Office of Surface Mining also play key roles in energy development on tribal lands. See DOI,
BIA, Office of Indian Energy and Economic Development, “Working on Indian Lands,” at
https://www.indianaffairs.gov/as-ia/ieed/division-energy-and-mineral-development/working-indian-lands. Depending
on the circumstances, the involvement of other federal agencies or offices also may be required.
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Responsible Tribal Home Ownership Act of 2012 (HEARTH Act).141 The HEARTH Act amended
the Indian Long-Term Leasing Act of 1955 and authorized the Secretary to approve tribal leasing
regulations for certain activities.142 Upon approval, leases executed under approved tribal leasing
regulations do not require the Secretary’s approval.
Similarly, Congress removed the requirement for the Secretary’s approval for certain leases,
business agreements, and rights-of-way for Indian energy projects. The Indian Tribal Energy
Development and Self-Determination Act of 2005 (ITESDA) authorized the Secretary to enter
into tribal energy resource agreements (TERAs) with tribes the Secretary had deemed to have
sufficient capacity to regulate their energy development.143 Once a tribe enters into a TERA with
the Secretary, it is able to enter into energy-related mineral leases and associated transactions
without additional approval by the Secretary. In 2015, after the Governmental Accountability
Office reported that no tribe had entered into a TERA with the Secretary, Congress passed the
Indian Tribal Energy Development and Self-Determination Act Amendments of 2017,144 which
amended the TERA approval process, among other things.145
Congress also has considered legislation that would authorize tribes to request to transfer tribal
trust lands into restricted fee tribal lands.146 Under the proposals, the restricted fee land would
remain communal y owned by the tribe and would continue to have restrictions on alienation and
taxation. However, tribes would be able to develop and lease the lands without U.S. government
approval.
Congress may wish to consider whether to increase, decrease, or continue the same level of
secretarial authority to encumber trust or restricted fee lands in general or for specific uses.
Congress has provided the option for tribes to seek removal of the Secretary’s approval
requirement for leasing under the HEARTH Act and for Indian energy projects under ITESDA
and its amendments. Congress also has considered a similar option for restricted fee lands.
Congress may consider the time and additional resources needed for tribes to pursue removing the
Secretary’s authority under existing authorities, such as under a TERA.
The Land Buy-Back Program and Reducing Fractionation
Al otted lands can have management constraints when parcels of lands are highly fractionated. In
2009, the settlement agreement for the Cobell v. Salazar case established a program to buy-back
fractionated land interests. The settlement agreement was contingent on the enactment of
legislation that would establish a Trust Land Consolidation Fund and authorize the acquisitions.147
In 2010, Congress passed the Claims Resolution Act of 2010 (CRA) authorizing the fund and
associated provisions.148 Administered by DOI, the LBBP uses $1.9 bil ion set aside in the CRA
for the Trust Land Consolidation Fund to purchase fractionated interests from wil ing sel ers at

141 P.L. 112-151.
142 P.L. 112-151 (exempting leases for exploration, development, or extraction of a mineral resource). Indian Long-
T erm Leasing Act of 1955, 25 U.S.C. §415(h).
143 P.L. 109-58, T itle V.
144 P.L. 115-325.
145 For more information, see CRS Report R46446, Tribal Energy Resource Agreements (TERAs): Approval Process
and Selected Issues for Congress, by T ana Fitzpatrick.
146 See, for example, the American Indian Empowerment Act of 2017 (H.R. 215) in the 115th Congress. Similar
versions of this bill were introduced in earlier Congresses.
147 Class Action Settlement Agreement, Cobell v. Salazar, No. 1:96CV01285-JR, at 2 (December 7, 2009).
148 Also known as the Claims Resettlement Act of 2010, P.L. 111-291.
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fair market value, consolidate those interests, and restore the land to tribal ownership.149 The
settlement and the law al ows the Secretary to make payments from the fund for a 10-year period,
which is scheduled to expire in November 2022.150
The LBBP reports that nearly 3 mil ion fractionated interests were available for purchase when
the program began in 2012.151 As of December 2019, the program had acquired and restored to
tribal control nearly 2.6 mil ion acres of fractionated land interests.152 The LBBP has reported
difficulties with locating al owners of the fractionated interests. Among other concerns, some
stakeholders have raised issues with the program. These include some tribes’ distrust that DOI
wil ensure adequate appraisal and management of the land, some tribes’ desire to avoid placing
land back into trust status, the federal government’s maintenance of land in trust and under
government control, and the plan for the remaining funding after the program ends.153
Options for Congress include taking no action and al owing the program to expire; extending the
program, temporarily or indefinitely; and modifying the existing program. For example, the 113th
Congress considered extending the program and would have amended the CRA to extend the
Trust Land Consolidation Fund from 10 to 15 years.154 Extending the program for any length
would potential y require other congressional actions, such as considering additional funding to
assist with acquisitions, among others.

Author Information

Tana Fitzpatrick

Specialist in Natural Resources Policy

149 Rebekah Martin, “Defending the Cobell Buy-Back Program,” American Indian Law Review, vol. 41, no. 1 (2016),
p. 105, at https://www.jstor.org/stable/26492255. Hereinafter, Martin, “ Defending the Buy-Back Program.”
150 P.L. 111-291, §101(e); DOI, LBBP, “Program History, Land Buy-Back Program for T ribal Nations,” at
https://www.doi.gov/buybackprogram/program-history-land-buy-back-program-tribal-nations.
151 DOI, LBBP, “ Land Buy-Back Program for T ribal Nations: Frequently Asked Questions,” at https://www.doi.gov/
buybackprogram/FAQ#Background.
152 DOI, LBBP, “ Interior’s Land Buy-Back Program Adds Locations to Its Implementation Schedule and Makes
Changes for Final Years,” at https://www.doi.gov/buybackprogram/interiors-land-buy-back-program-adds-locations-
its-implementation-schedule-and-makes.
153 Martin, “Defending the Buy-Back Program,” pp.107-208.
154 H.R. 5020, 113th Congress.
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